This is an appeal from the Decision 1 dated January 31, 1994, of the Regional Trial Court, Branch 121, Caloocan City, convicting RODEL Z. SAHAGUN @ "ROD SAKSAK" and ERNESTO F. VILLAREAL @ "WONG" of the crime of Murder under an Information which reads as follows:jgc:chanrobles.com.ph
"That on or about August 1, 1993, in the city of Kalookan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, 2 conspiring and confederating with one another, did then and there willfully, unlawfully and feloniously, with intent to kill and taking advantage of superior strength and with evident premeditation, attack, assault and use personal violence upon the person of one Michelle Avendaño y Agapito, by then and there suddenly dropping a concrete slab on her face and thereafter stabbing her with a bladed weapon on different parts of her body, thereby inflicting upon her mortal wounds which were the direct and immediate cause of her death.
CONTRARY TO LAW."cralaw virtua1aw library
When arraigned, Accused
Villareal and Sahagun pleaded not guilty. Trial ensued and the two accused were convicted principally on the basis of the testimony of eyewitness Joselito dela Cruz. They were sentenced to suffer the penalty of reclusion perpetua
and ordered to pay jointly and severally the heirs of Michelle Avendaño the following amounts: a) fifty thousand pesos (P50,000.00) as indemnity for her death; b) twenty thousand pesos (P20,000.00) as moral damages and c) eighteen thousand eight hundred pesos (P18,800.00) as actual damages.
The prosecution evidence shows that in the afternoon of August 1, 1993, Ernesto Villareal alias "Wong" and Fernando Bonifacio alias "Kiskis" were having a drinking spree in the house of Rodel Sahagun alias "Saksak." At about 2:30 p.m., Joselito dela Cruz joined the three accused after he was invited by them. During their drinking spree, dela Cruz heard the three talk about their plan to get a girl whose name was not mentioned. At about 5 o’clock p.m., they all left Sahagun’s house and decided to go to the Caltex gasoline station, some twenty (20) meters away. They boarded a tricycle owned by the brother of Bonifacio. While inside the tricycle, Sahagun confided to dela Cruz that they (the three accused) would abduct, rape and kill Michelle Avendaño. 3 Sahagun revealed to dela Cruz that he had a long standing feud with Michelle. It started when she drove him away when he parked his tricycle in front of the Santos School Supply where she was then working as a saleslady. Dela Cruz thought of breaking away from the group but he was warned by Sahagun that he would be implicated if he did not join their plan. Dela Cruz was struck by fear for he knew that Sahagun would carry out his threat. 4 After three hours at the gasoline station, they saw Michelle arrive at the Santos School Supply. They proceeded to Basilio Street, some thirty (30) meters from the store, on board the tricycle driven by Bonifacio. Bonifacio positioned the tricycle in the parking lot for tricycles. Sahagun posted himself near the store of Aling Binay, Villareal stayed near the parking lot for tricycles while dela Cruz stood beside a jeep parked at the Petron gasoline station. Bonifacio continued to serve as driver of the tricycle. 5
Michelle Avendaño came out of the Santos School Supply at about 8:30 in the evening. She saw that the other tricycles in the parking area had no drivers so she chose to take the tricycle driven by Bonifacio. As soon as she got inside the tricycle, Sahagun, Villareal and dela Cruz boarded it. Sahagun sat beside her while Villareal and dela Cruz sat behind Bonifacio. Michelle protested but Sahagun threatened her with harm. The tricycle sped off and stopped at Maria Clara Elementary School on 8th Avenue, Caloocan City. Sahagun covered Michelle’s mouth with her left hand and bodily carried her. Bonifacio and Villareal entered the school premises through a hole in the concrete wall. Sahagun passed Michelle to Bonifacio and Villareal before passing through the hole. Dela Cruz joined them but Sahagun ordered him to act as their look-out. Once inside, the three accused forcibly laid down Michelle on the ground; Villareal held her legs while Bonifacio held her arms. Michelle shouted and struggled. Irritated by Michelle’s scream, Sahagun picked up an adobe rock and dropped it on her head. Thereafter, Villareal and Bonifacio stabbed Michelle on different parts of her body. Dela Cruz, who was then five (5) meters away from the scene, hurriedly left as he could not endure the sight of the crime being perpetrated by the accused. 6
On August 3, 1993, the body of Michelle was found inside the premises of Maria Clara Elementary School. Michelle’s mother, Ursula Avendaño, testified that her family incurred P12,000.00 for the funeral services (Exhibits "N" and "O"). They also paid P4,000.00 to International Funeral Homes (Exhibit "P"). During the wake, they spent P75.00 for the tape (Exhibit "Q"), P2,325.00 for the chairs (Exhibit "R") and P400.00 for the mass (Exhibit "S"). She further testified that when she learned of her daughter’s death, she became nervous and cried a lot. Her husband also suffered a shock when he saw the place where Michelle was killed. He underwent medical treatment and had to stay in his sister’s house in Navotas to recover. 7
Joselito dela Cruz voluntarily surrendered to the Malabon Police on August 17, 1993. He gave two sworn statements dated August 18, 1993 and August 20, 1993, respectively, to the National Bureau of Investigation (NBI) regarding the murder of Michelle. He implicated Villareal, and Villareal was arrested on August 18, 1993. Villareal and dela Cruz pointed to Sahagun as one of their companions in the brutal slaying of Michelle. Sahagun was investigated on August 20, 1993.
The defense was one of denial. Villareal testified that on August 1, 1993, he was in the house of Aling Tessie, a jeepney operator, fixing the jeep he was assigned to drive. Said house was 30-minute drive from Maria Clara Elementary School, 2-minute walk from his house, 5-minute drive from Bayan-bayanan, Malabon, and 5-minute drive from Santos School Supply. After working on the jeep from 9 o’clock in the morning to 5 o’clock in the afternoon, he went home. He was already asleep in his house at about 9 o’clock in the evening. He admitted knowing Sahagun and Villareal for they were his neighbors but denied being their close friend. He likewise admitted knowing dela Cruz, the latter being the son of the godchild of his mother. He denied knowing Michelle. He only learned of Michelle’s death from the newspapers.
He was brought to the NBI office on August 18, 1993. There, he learned that he was implicated by dela Cruz. The NBI agents started torturing him on August 18 at 7 o’clock in the evening during which he was not blindfolded. He was told by the NBI agents to admit killing Michelle and cooperate with them. He was brought to the rooftop of the NBI office on August 19, where he was tortured from 10 o’clock in the evening until 5 o’clock in the morning of the following day. He was blindfolded when he was slapped, kicked, placed under water ("tinubig"), and bullets were inserted between his fingers by the NBI agents. They spat inside his mouth. He lost consciousness until a doctor arrived and examined him. He was then allowed to rest. After torturing him, he was made to sign a document which turned out to be his extra-judicial confession. Atty. Florante Dizon was not present at that time. Five hours later, he was presented to the press people who failed to notice any sign that he was mauled. On August 20, 1993, at about 10 o’clock in the morning, he met Atty. Dizon for the first time. He told Atty. Dizon that he signed the document because he could no longer endure the torture. Atty. Dizon then advised him of his constitutional rights. He agreed to have Atty. Dizon to be his lawyer for the meantime as it was necessary during the investigation. Atty. Dizon later on accompanied him to the Department of Justice (DOJ) building. State Prosecutor Macapagal asked him if Atty. Dizon was his counsel of choice and he answered that Atty. Dizon was just given to him by the NBI agents on August 20, 1993. When he informed State Prosecutor Macapagal that he was tortured by the NBI agents, he saw her and the agents present thereat wink their eyes. On August 21, 1993, he was brought to the Maria Clara Elementary School by the NBI agents for the re-enactment of the crime upon their order. Atty. Dizon was not with them at that time. 8chanrobles virtual lawlibrary
Sahagun testified that on August 1, 1993, at about 8 o’clock in the morning, he brought his youngest child to his mother in Buendia, Pasig. They spent the rest of the day at the Grand Central, Caloocan City. They went home at about 6 o’clock in the evening and had dinner at about 7 o’clock. Thereafter, he watched the television with his wife and children and some of his tenants. At about 8 o’clock, he went to sleep. He admitted knowing Villareal, Fernando and dela Cruz but denied being their close friend. He was arrested by the Caloocan police on August 5, 1993. The policemen asked him about the killing of a child whose name he did not even know. They handcuffed him, ordered him to lie flat on the bench, tied him, kicked him on his face, boxed his chest, put a cloth inside his mouth, poured water on his face and threatened to kill him if he did not admit the killing of Michelle. He refused to admit anything saying they could shoot him in the head because he was already tired. They also asked about his tricycle which he sold to Arthur Esteban on May 22, 1993 for P22,000.00 (Exh. "14") and which was alleged by the policemen to have been used by him in committing the crime. They tortured him again. Subsequently, he was brought to the warrant section of the police station where his brother’s criminal case was imputed to him. He was detained from August 5 to August 12, 1993.
On August 13, 1993, he was released after his brother posted a bond for him. A week later, he was again arrested by the Malabon policemen and NBI agents on August 20, 1993 at 5 o’clock in the morning. After being detained for a few minutes at the Malabon headquarters, he was transferred to the NBI (Manila) office where he was tortured and forced to admit the killing of Michelle. They inserted bullets between his fingers and poked an icepick at his chest while they asked him to confess. When he refused, they slammed his head on the table. The NBI agents did not inform him of his right to counsel, thus, when they requested him to sign a waiver, he agreed without a lawyer assisting him. When they offered him a lawyer, he refused to accept his services because he did not know the legal procedure considering that he only finished grade one. He learned in the NBI office that Villareal and dela Cruz implicated him in the murder of Michelle. 9
As aforestated, the trial court convicted the duo. In this appeal, Accused
-appellant Sahagun contends that:jgc:chanrobles.com.ph
"I. THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF THE PROSECUTION WITNESSES AND IN DISREGARDING THE EVIDENCE FOR THE DEFENSE.
"II. THE TRIAL COURT ERRED IN FINDING ACCUSED RODEL SAHAGUN GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER."cralaw virtua1aw library
For his part, Accused
-appellant Villareal contends that:jgc:chanrobles.com.ph
"THE TRIAL COURT ERRED IN COMING UP WITH A JUDGMENT OF CONVICTION AGAINST HEREIN ACCUSED."cralaw virtua1aw library
In questioning the decision of the trial court, appellants Sahagun and Villareal assail the credibility of prosecution eyewitness dela Cruz. Additionally, appellant Villareal disputes the admissibility of his extra-judicial confessions on the ground that his right to counsel was violated.
We shall first resolve Villareal’s claim that his extra-judicial confessions are inadmissible as his right to counsel was violated. It must be abundantly clear from the evidence that the right to counsel of a person under custodial investigation has not been violated. The facts show that on August 17, 1993, de la Cruz confessed to the NBI about his participation in the crime. He also implicated Villareal and Sahagun. The next day, August 18, Villareal surrendered to the Malabon police and was promptly turned over to the NBI. Again, the next day, August 19, Villareal admitted his complicity in an extra-judicial confession taken by NBI agent Paterno Reserva. The following day, August 20, Villareal executed another extra-judicial statement before agent Reserva. In this second statement, Villareal pointed to Sahagun as a participant in the crime. He also identified the tricycle they used in the crime. Atty. Florante Dizon allegedly served as counsel of Villareal when he gave his two confessions. Atty. Dizon was supplied by the NBI. Villareal, however, averred that Atty. Dizon assisted him only on August 20. He said that his August 19 confession was coerced. He also declared that he was not assisted by any counsel when he was made to re-enact the crime on August 21.
We rule that the counseling given by Atty. Dizon to Villareal was not sufficiently protective of Villareal’s rights as an accused as contemplated by the Constitution. To start with, Atty. Dizon is not really known to Villareal. He was requested to act as counsel because he happened to be at the NBI following-up a client’s case. Given that circumstance, it cannot be expected that Atty. Dizon would give an advice to Villareal that would offend the agent conducting the investigation. Thus, it appears that Atty. Dizon did no more than recite to Villareal his constitutional rights. He made no independent effort to determine whether Villareal’s confessions were free and voluntary. He swallowed hook, line and sinker, Villareal’s story that he was ready to confess oblivious of the fact that they were then inside the NBI office and before an agent or in an atmosphere hostile to a crime suspect. He did not inquire from Villareal how he was treated in the last 24-hours. He did not seek any of Villareal’s relatives or friends to find out if he has any defense which Villareal was not free to disclose due to his confinement. He did not even assist Villareal when the latter was made to re-enact the crime at bar.
Atty. Dizon’s lack of vigilance as a counsel is likewise underscored by the fact that he himself testified that Villareal gave his confessions under the impression that he was only a witness and not an accused in the case. He declared:jgc:chanrobles.com.ph
"x x x
Q: Did you come to know the reason why Ernesto Villareal gave statement before the NBI?
A: Yes, per his reason and according to him, he voluntarily executed that document, because what he know was he was to be asked and to give his statement to the NBI, because according to him, he was merely a witness to the incident, mam, although he was with the group wherein they took the lady from a certain place where the crime was committed, mam." 10
This revelation should have jolted Atty. Dizon and should have driven him to exert extra efforts to find out whether Villareal was tricked in making his confession. 11 Again, he did not take that extra effort.
It further appears that Atty. Dizon likewise acted as counsel of de la Cruz when he confessed to the NBI. De la Cruz’ confession implicated Villareal. Later, de la Cruz was used as a witness by the prosecution. This turn of events created a conflict of interests between de la Cruz and Villareal. A tested trial lawyer could have anticipated this strategy of the prosecution. Atty. Dizon’s foresight failed to make this discernment. Thus, he was placed in an unenviable position of having counselled two parties with irreconcilable versions of how and who perpetrated the crime at bar. A lawyer torn by a conflict of interest cannot be an effective counsel.
We hold that the evidence is not clear and convincing that Villareal’s right to counsel was duly protected. Hence, his confessions given without the benefit of an effective, vigilant and independent counsel are inadmissible in evidence.
But even without Villareal’s confessions, the prosecution evidence is sufficient to convict the Accused-Appellants
. After a careful scrutiny of the evidence, we rule that De la Cruz’ testimony cannot be successfully assailed. First, it is too late in the day to question the use of de la Cruz as a witness for the prosecution. It is true that de la Cruz was not first included as an accused in the case and later discharged as a state witness by the trial court. The records, however, show that accused-appellants did not object when de la Cruz was called as a prosecution witness. They are now estopped from assailing this procedure followed by the trial court. Secondly, the attempt of accused-appellants to downgrade the testimony of de la Cruz is puny. The discrepancies they find in his testimony are insignificant and not unusual to be committed by witnesses to startling and shocking crimes. We are guided by the jurisprudence borne from experience that perfect testimonies cannot be expected from imperfect senses. For instance, the failure to prove blood in the adobe dropped on the victim does not disprove her murder considering the totality of evidence. De la Cruz was able to describe how the accused-appellants planned the crime and its execution, and a lapse or two in the narration of its details will not suffice to dismiss his testimony as a falsehood. Similarly unimpressive is accused-appellants’ contention that it is incredible for the crime at bar to be committed in a school site. It is contended that the screams and struggle of the parties could not but attract the attention of people. Accused-appellants conveniently forgot that they were extremely drunk when they committed the crime at bar. Drunks are irrational and cannot be expected to plan a perfect crime. Suffice to state that crimes are now committed in the most unexpected places and in brazen disregard of our authorities.
IN VIEW WHEREOF, the Decision dated January 31, 1994 of the Regional Trial Court of Caloocan City, Branch 121, convicting accused-appellants is AFFIRMED. Cost against appellants.
Regalado, Romero, Mendoza and Torres, Jr., JJ.
1. Penned by Hon. Judge Adoracion G. Angeles.
2. Accused Fernando Bonifacio remained at large.
3. TSN, Joselito dela Cruz, November 22, 1993, pp. 3-4.
4. Id., November 23, 1983, pp. 3-4, 6-7.
5. Supra note 3, pp. 5-6.
6. Id., pp. 6-9.
7. Decision, p. 17.
8. TSN, Ernesto Villareal, December 14, 1993, pp. 5-23; December 15, 1993, pp. 5-18.
9. Rollo, pp. 150-153.
10. TSN, Atty. Florante Dizon, January 19, 1994, p. 4.
11. Cf: People v. Agustin, 240 SCRA 541 .